State v Limate [2006] PGNC 200; N4986 (24 August 2006)

N4986

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 446 0F 2006

THE STATE

V

DAMIEN LIMATE

Buka: Cannings J
2006: 18, 24 August

CRIMINAL LAW – grievous bodily harm – Criminal Code, Section 319 – sentence on plea of guilty – 30 months.

A man pleaded guilty to doing grievous bodily harm to another man by throwing a rock at his knee, then kicking him while he lay on the ground. It was done following a drunken altercation that broke out between the offender and two friends, who fought against the complainant.

Held:

(1) The starting point for sentencing for grievous bodily harm under Section 317 of the Criminal Code is 42 months imprisonment.

(2) Mitigating factors were: did not cause major injuries; the victim provoked the offender; co-operated with police; some compensation paid; pleaded guilty; expressed remorse; first offender; it was a drunken fight, instigated by the victim.

(3) Aggravating factors were: he hit the victim twice; others were involved; a kick, rather than a fist; no accident; vicious assault; did not give himself up; not a youthful offender.

(4) A sentence of 30 months was imposed. The pre-sentence period in custody of 5 months, 3 weeks and 1 day was deducted and the balance of the sentence was suspended on conditions.

Cases cited

The following cases are cited in the judgment:

Tom Longman Yaul v The State (2005) SC803
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06

PLEA

A man pleaded guilty to unlawfully doing grievous bodily harm and the following reasons for sentence were given.

Counsel

R Luman, for the State
P Kaluwin, for the accused

SENTENCE

24 August, 2006

1. CANNINGS J: This is a decision on the sentence for a man who pleaded guilty to unlawfully doing grievous bodily harm under Section 319 of the Criminal Code. The accused was drinking beer with a group of friends, including the complainant, Jacob Tauna. They were playing a radio at full blast. The complainant went inside his house and brought out a radio belonging to his nephew, and smashed it. The accused and the complainant then argued. The accused ran to a pile of stones, got a stone and threw it at the complainant, hitting him on the right knee and causing him to fall to the ground. While the complainant lay on the ground the accused kicked him and then the accused walked away. The accused's friends then continued the assault on the complainant and inflicted serious injuries. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the offender.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

It is true that we were all drinking together. The complainant, Jacob, is my in-law. I am married to his sister. Jacob was drunk and he smashed his nephew's radio and he wanted to fight me. He was armed with a grass knife. That is why I got a rock and threw it at him and then kicked him. My friends then cut him with an axe. I apologise for what I did and the trouble I caused my in-laws. I have reconciled with him and paid him K500.00 compensation. I apologise to the court and to God and ask for mercy.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). The rationale is that giving the benefit of the doubt provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State extra resources that would have been committed to the case if a trial were necessary.

Depositions

• This was a fight amongst friends who were all drunk.
  
• The complainant was armed with a knife before he was struck by the offender.
  
• A medical report shows that the victim, Jacob Tauna, a 37-year-old male, was admitted to the surgical ward of Buka General Hospital on the day of the incident, 14 January 2006. He had a penetrating abdomen injury and lacerations to the right knee and leg. His most serious injuries were lacerations to his liver, gall bladder and stomach. His gall bladder was removed and repairs done to the liver and stomach. His post-operative recovery was uneventful and he was discharged on 1 February 2006. This shows that though the victim was badly assaulted, the knee injury inflicted by the offender did not cause his major injuries.
  
• The offender made admissions to the police and co-operated fully.
  

Allocutus

• It was the victim who started the fight.
  
• The offender expressed remorse.
  

Matters raised by defence counsel

• The victim has recovered well from the assault and his injuries are not permanent.
  

PERSONAL PARTICULARS

5. The offender is aged 31 and married. His mother is deceased and his father alive. He is the seventh born in a family of eight. He was educated to grade 6.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kaluwin highlighted the following mitigating factors: the offender pleaded guilty; he expressed remorse; he did not inflict the major injuries on the victim; it was the victim who started the fight; the offender did not use weapons, other than throwing a rock. He submitted that a wholly suspended 12 months sentence would be appropriate.

SUBMISSIONS BY THE STATE

7. Mr Luman, for the State, conceded that the medical report went in the offender's favour as it showed that the victim did not suffer a serious knee injury. The major aggravating factor was that the offender did not protect the victim from the other friends who started to seriously assault him.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
  
• step 2: what is a proper starting point?
  
• step 3: what should the head sentence be?
  
• step 4: should the pre-sentence period in custody be deducted?
  
• step 5: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Section 319 (grievous bodily harm) of the Criminal Code states:

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

10. The maximum penalty is therefore seven years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a 'starting point' for various types of cases. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of 42 months as the starting point.

STEP 3: WHAT IS THE HEAD SENTENCE?

12. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be at or near the starting point.

13. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Did the assault on the victim consist of just a single blow? No – the offender threw a rock at the victim, causing him to fall down. Then he kicked him.
   
2. Was just one person involved in the assault? No – there were two others.
   
3. Was there some other cause of bodily harm, ie did the injury not result directly from the assault committed by the offender? Yes – the serious injuries the victim suffered were not due directly to the offender's actions.
   
4. Was the victim injured by only a fist? No – the offender threw a rock, then kicked him.
   
5. Did the offender not set out to hurt anyone? No – he was involved in a three-on-one fight.
   
6. Did the victim or any other person provoke the offender in 'the non-legal sense', eg did the victim abuse or assault the offender? Yes – the victim started the fracas by smashing a radio; then he wanted to fight the offender and he was armed with a grass-knife.
   
7. Did the victim have a pre-existing condition making him susceptible to injury by a moderate blow? No.
   
8. Can the assault on the victim be classed as 'not vicious'? No – kicking a person while he lay on the ground, drunk, amounts to a vicious attack.
   
9. Did the offender give himself up after the incident? No.
   
10. Did the offender cooperate with the police in their investigations? Yes.
    
11. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the victim, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did? Yes – he has paid K500.00 cash compensation to the victim.
    
12. Has the offender pleaded guilty? Yes.
    
13. Has the offender genuinely expressed remorse? Yes.
    
14. Is this his first offence? Yes.
    
15. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? No.
    
16. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes – this was a fight amongst friends and relatives, who were all drunk. It was the victim who instigated the fight.
    

14. To recap, mitigating factors are:

• No 3 – did not cause major injuries;
  
• No 6 – the victim provoked the offender;
  
• No 10 – co-operated with police;
  
• No 11 – some compensation;
  
• No 12 – pleaded guilty;
  
• No 13 – expressed remorse;
  
• No 14 – first offender;
  
• No 16 – it was a drunken fight, instigated by the victim.
  

15. Aggravating factors are:

• No 1 – he hit the victim twice;
  
• No 2 – others were involved;
  
• No 4 – a kick, rather than fist;
  
• No 5 – no accident;
  
• No 8 – vicious assault;
  
• No 9 – did not give himself up;
  
• No 15 – not a youthful offender.
  

No 7 is a neutral factor.

16. After weighing all these factors and bearing in mind that there are eight mitigating factors compared to seven aggravating factors, the head sentence should be less than the starting point. I impose a head sentence of 30 months imprisonment.

STEP 4: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

17. The offender has spent 5 months, 3 weeks and 1 day in custody in connexion with this offence and it is proper that that period be deducted from the total sentence. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody.

STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

18. This is an appropriate case in which to consider a suspended sentence in view of the many mitigating factors identified. The victim is the offender's in-law and the victim has recovered from his near-death experience. A crime has been committed in the course of a drunken brawl. The offender has already spent a long time in the inhuman conditions that prevail at the Buka police lock-up. He will surely have learned some lessons about how he should lead his life from these experiences.

19. However, strict conditions will be imposed. The offender must not be allowed to forget that he is still under sentence – even when he is serving the sentence outside jail. The rest of the sentence will be suspended on the following conditions:

1. must within three months pay an extra K500.00 cash compensation to the victim, Jacob Tauna;
   
2. must reside at Wakunai and nowhere else except with the written approval of the National Court;
   
3. must not leave Bougainville without the written approval of the National Court;
   
4. must perform at least six hours unpaid community work each week at Wakunai Catholic Church under the supervision of the Parish Priest;
   
5. must attend Wakunai Catholic Church every Sunday for service and worship and assist the church in its community activities under the supervision of the Parish Priest;
   
6. must report to Wakunai Police Station every Government payweek Friday between 9.00 am and 3.00 pm and sign the register;
   
7. must not consume alcohol or drugs;
   
8. must keep the peace and be of good behaviour;
   
9. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of imposition of sentence;
   
10. the person responsible for filing the probation report will be the ARB senior welfare officer;
    
11. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
    

20. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the ARB senior welfare officer, any of who may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803, Salika J, Mogish J, Cannings J.)

SENTENCE

21. Damien Limate, having been convicted of the crime of causing grievous bodily harm, is sentenced as follows:

Length of sentence imposed	30 months
Pre-sentence period to be deducted	5 months, 3 weeks, 1 day
Resultant length of sentence to be served	24 months, 6 days
Amount of sentence suspended	24 months, 6 days
Time to be served in custody	Nil, subject to compliance with conditions of suspended sentence

Sentenced accordingly.
________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused